Analysis: Of old values and modernity

Posted Mon, June 27th, 2011 3:15 pm by Lyle Denniston

Boldly proclaiming that old constitutional principles do not yield to new waves of technology, but leaving itself chances to make some exceptions, the Supreme Court on Monday flatly barred state legislatures and Congress from trying to shield children from violent video games, took on anew the issue of whether government can protect children from dirty words and adult nudity on TV and radio, and promised a new decision on high-tech police surveillance and its impact on individual privacy. On the last public session of the Term, when modernity was front-and-center on the Court’s docket, the Justices were clearly not of one mind about it, and were not promising that they would be when they next explore today’s changing values.

It is clearly a feature of modern life that teens — and sub-teens — spend hours and hours playing electronic games, for better or for worse. In a vivid response Monday, the Court’s majority made very clear that that was none of the government’s business (at least when violence, not obscenity, is what the children observe on their computers or electronic display modules). The Court used the broadest constitutional language open to it to accomplish that result, apparently leaving no room for government to try different approaches.

But, guaranteeing that the Court’s next Term will also test the Justices’ reaction to changing times (and, very likely, will again divide them), the Court said Monday that it will rule on society’s supposedly increasing tolerance of profanity and nudity, and on society’s rising nervousness about privacy when the government uses Digital Age devices to monitor an individual’s every move. The centuries-old limitations of the First and Fourth Amendments will again be very much at issue.

On violent video games, the Court’s members took four different approaches in Brown v. Entertainment Merchants Association (08-1448) to a California law that made it a crime to sell or rent the games to anyone under the age of 18 (if a parent or other adult was not with the youth). But only one of those approaches counted: the conclusion that the state’s law was a forbidden attempt to create a new exception to free-speech rights by regulating youths’ access to violent video content — no matter how “disgusting” the content or how young the children. That view had the unqualified support of five Justices.

Speaking through an opinion by Justice Antonin Scalia, the majority insisted that it was not blinding itself to arguments that new video technology was different, nor to the argument that exposure to such games may become a “problem.” “Perhaps they do present a problem, and perhaps none of us would allow our own children to play them,” Scalia wrote. But, he quickly added, there are “all sorts of ‘problems’…that cannot be addressed by governmental restrictions on free expression.”

The Scalia opinion drew an exceedingly bright constitutional line between obscenity and violence, with obscenity outside the First Amendment and violent expression within it. The majority commented that the Court has never taken violent expression out from under the First Amendment’s protection. The new ruling, in fact, was said to be a direct outgrowth of the Court’s decision the prior Term, striking down a federal law that banned video or other depictions of animal cruelty, on the premise that violent displays were a form of protected free speech. That was the ruling in U.S. v. Stevens.

There was, however, a clear difference between Stevens and Monday’s ruling: in Stevens, the Court had said explicitly that a legislature could perhaps write a narrower law about animal cruelty that would satisfy the Constitution; no such opening was left for laws to deny children access to violent video games. The law at issue was invalid because of the very words of regulation it contained, the Court said — meaning that it could imagine no set of facts that would allow such a law to be enforced.

The sweeping reach of the new decision could be traced, perhaps predominantly, to the fact that the majority was not persuaded by any of the research literature that suggests that children who watch violent video games are led to engage in dangerous or other harmful behavior themselves.

A secondary aspect of the ruling’s rejection of this research was an explicit declaration that, in terms of impact on children’s minds and behavior, such games really do not draw the child into the narrative personally any more than, say, reading a book (including, perhaps, a comic book), movie, or TV program with a violent theme. That video games are said to be more “interactive,” Justice Scalia said, “is nothing new.” Indeed, the majority opinion was quite dismissive of the supposed impact of such violent games on children, suggesting that research merely shows “miniscule real-world effects,” such as a finding that a child makes “louder noises” after playing such a game.

Playing games on video, Scalia said, is “different in kind” from other forms of expression, but “not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones.”

To a recital by Justice Samuel A. Alito, Jr., of what the Scalia opinion called “disgusting video games,” the majority said those descriptions were designed “to disgust us, but disgust is not a valid basis for restricting expression.”

While the majority made a fervent argument that it was up to parents, not the government, to determine what their minor children may watch on a video device, the main opinion also strongly upheld an independent right of minors to access to information, based on an independent right to “be spoken to without their parents’ consent.”

The Scalia opinion was considerably abbreviated, at only 18 pages, considering his normal writing on major subjects. It was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor.

The second approach to the validity of curbs on violent video games was Justice Alito’s, but it drew the support of only Chief Justice John G. Roberts, Jr. They would have struck down the California law as too vague to give people full warning of what was being banned for children. It was clear that Alito and the Chief Justice were firmly opposed to the breadth of the Scalia opinion, and sought to make a very strong case for the general idea that legislatures and Congress should have significant authority to try to stamp out the distribution of such games to children. They would not have applied a rigorous constitutional standard to such laws.

The third approach to the phenomenon of such games was that of Justice Clarence Thomas, who wrote a dissent speaking only for himself. In an exhaustive view of how parental control of children was understood in the era of the Founding generation in the eighteenth Century, Thomas argued that the First Amendment simply did not give children any right, on their own, to free speech. If government wishes to speak to children, he wrote, it must do so only through the parents. “Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today,” Thomas said.

And the fourth approach was that of Justice Stephen G. Breyer, who agreed in his own dissenting opinion with the majority that laws regulating minors’ access to such games should be judged by a very tough constitutional standard. But, just as the Court in the past had found that the First Amendment allows government to protect children from exposure to obscenity, Breyer would allow it to do so for “highly realistic violent video games,” with the restriction on access limited to those under age 17.

Before the Court handed down its ruling in that case Monday morning, it issued orders announcing that it would be reexamining, at its next Term, a different issue on protecting children from expression that some deem harmful to them, and a different issue on modern technology.

Because the Scalia opinion in the violent video case drew such a sharp distinction between protecting children from violent expression as compared to obscene expression, it is far from clear that the Court will decide by the same voting lineup the case it will be reviewing on the government’s power to ban — for the sake of protecting children — what federal law calls “indecent” expression on radio and TV programs. Obscenity is not at issue in the new case of Federal Communications Commission v. Fox Television Stations, et al. (10-1293), but the protection from children from profanity and nudity considered harmful to them is directly at issue.

Two years ago, Justice Scalia wrote for a 5-4 majority that the FCC does have authority, under a law dating back to 1927, to forbid the broadcast of any single use of the F-word or the S-word. In that opinion, Scalia argued that it was reasonable for the Commission to conclude “that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable,” justified an FCC regulation that bans the broadcast of any indecency, if it is put on the air between 6 a.m. and 10 p.m. — the hours when, presumably, children would be in the viewing or listening audience.

At that time, the Commission’s authority had the support of Chief Justice Roberts and Justices Alito, Kennedy, and Thomas. Justices Breyer and Ginsburg dissented (along with then-serving Justices David H. Souter and John Paul Stevens — since replaced by Justices Sotomayor and Kagan, respectively).

What the Court did not decide in that prior ruling, however, was whether the FCC policy against “fleeting expletives” was valid under the First Amendment. That constitutional question was sent back to the Second Circuit Court, resulting in the decision now to be reviewed; the Second Circuit struck down the policy in its entirety. The case, then and now, involves FCC rulings that Fox TV stations violated the anti-indecency policy by broadcasting two TV award programs in which actresses used the F-word or the S-word.

The appeals court, in that case, nullified the “fleeting expletive” policy. It then applied that ruling — in a separate case — to strike down the use of the indecency regulation against displays on TV of adult female nudity, if done in a suggestive way. That second ruling overturned a fine the FCC had imposed on ABC-TV stations for broadcasting a partial nudity scene on a police drama program, NYPD Blue.

The FCC, in its new appeal to the Supreme Court, asked the Justices to uphold its policy both as it applied to “fleeting expletives” and to “scripted nudity.” The Court on Monday granted review in FCC v. Fox TV and ABC-TV, et al. (10-1293), but re-wrote the only question that it said it would answer: whether the “current indecency enforcement regime” violates the First or Fifth Amendment to the Constitution. Justice Sotomayor, a former judge on the Second Circuit, will not take part in the review. A hearing and decision will come in the Term starting Oct. 3.

Just as the Court confronted new technology in a constitutional context in the violent video games case, it will do so again in the second highly controversial new case it granted on Monday: a test of the constitutionality of using GPS technology so that police can track wherever a suspect travels in a car or truck. When a GPS (Global Positioning System) device is attached to a vehicle, police can monitor, from a good distance away, all of the routes that that vehicle takes. (GPS is a satellite-based system that can pinpoint the accuracy of a receiving device — and thus the position of an object to which the device is attached — within 50 feet.)

In a ruling in the 1983 case of U.S. v.Knotts, the Court had decided that the use of an electronic beeper, hidden secretly in a container that was then stashed in the suspect’s car, was not a search within the meaning of the Fourth Amendment, so no warrant was required. That decision was confined, however, to a situation in which police used the device to track a single trip in the car to the suspect’s drug laboratory. The ruling left open the question of whether a warrant would be required in a situation involving a 24-hour surveillance, in a “dragnet-type” effort by police.

Federal appeals courts are now divided over whether the use of a GPS tracking device, over an extended period without a warrant, is a search that violates the Fourth Amendment. In the case that the Justices will be reviewing (U.S.v. Jones, 10-1259), the Justice Department is appealing a D.C. Circuit Court ruling that the use of a GPS tracking device secretly installed on a suspect’s car, and kept operating without a warrant for 28 days, violated the Fourth Amendment. The case involves a Washington, D.C., drug dealer, Antoine Jones. With information gathered by the GPS on a Jeep Grand Cherokee that Jones drove, prosecutors got a conviction of him for conspiracy to distribute cocaine; he was sentenced to life in prison and ordered to forfeit $1 million in drug trafficking proceeds.

The government’s appeal in that case involved only the issue of whether prolonged use of a GPS device was a search under the Fourth Amendment. The Court added for its review another question: whether the initial installation of the device on Jones’ car violated the Fourth Amendment, when he did not consent and there was no warrant.

The separate issue of whether initial installation violated the Fourth Amendment had been raised before the Court in a second GPS tracking case originating in Oregon, Pineda-Moreno v. U.S. (10-7515). The Court did not grant review of that case, but added the issue of installation into its review of the Jones case. It will be heard and decided next Term.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.